July 13, 2009

BHRPC hails HC ruling on homosexuals

SILCHAR, July 12: The Barak Human Rights Protection Committee (BHRPC) has welcomed the judgment of the Delhi High Court in the Naz Foundation and others Vs NCT of Delhi and other [WP (C) No.7455/2001] cases delivered on July 2 decriminalizing consensual sex among homosexuals. BHRPC held a core group discussion on the judgment and its potential in the field of human rights jurisprudence in India on July 8. Later in the day, the BHRPC sent a letter to the Prime Minister drawing his attention to the ruling of the High Court.

Now it is the turn of the government to act. BHRPC believes that from the legal and human rights view point, it is not advisable for the government to challenge the decision in the Supreme Court of India or enact a law making the judgment ineffective. It has now become imperative for the government to amend other laws to fine-tune them with this historic ruling. Drastic amendment or new legislation in the field of family law is necessary to remove discrimination against the LGBT communities in this sphere of life.

BHRPC thinks that it is also equally imperative for the government to respect the direction of the Supreme Court in Shakshi Vs Union of India [(writ petition(Crl.)No.33of1997], recommendation of the National Commission for Women (NCW) and long-standing demands of civil society organization for amendment of laws relating to sexual offences. There are inadequacies and loopholes in both substantial and procedural laws relating to sexual offence as they stand now in the IPC, the Criminal Procedure Code, 1973 (CrPC) and the Indian Evidence Act, 1872. BHRPC has also suggested some amendments in the Indian Evidence Act, 1972 such as (1) a new section 114B should be introduced providing a presumption in favour of the victim as to the consent in aggravated sexual assaults; (2) Clause (4) in section 155 which permits the person accused of rape or attempt to ravish to prove that the victim was of generally immoral character should be deleted; (3) in section 146 another clause, namely, clause (4) should be added starting expressly that in a prosecution for sexual assault, it shall not be permissible to adduce evidence or to put questions in cross-examination of the person assaulted with respect to his/her previous sexual history, character or conduct whether to establish consent or otherwise; (4) the absence of a medical report in the case of sexual assaults shall not be a factor against the complainant /person assaulted.

BHRPC urged the Prime Minister to amend the laws stated above taking into confidence and in consultation with the citizens of the country, particularly the groups of citizens interested in such matters such as women’s organizations, human rights organization and other civil society organizations. (Source - The Sentinel)